At the time this action was commenced, The Crusader was written and published by Robert Williams, a plaintiff in this action, and was distributed to this and other countries from Peking, China. Among the recipients of the issue in question were plaintiffs Conrad J. Lynn, Christopher Koch and City Lights Books, Inc., a San Francisco bookstore which distributes copies of The Crusader. These plaintiffs represent a class of persons who regularly receive The Crusader and who allegedly wish to continue receiving it and sending it through the mails.

Purportedly acting under the authority of 18 U.S.C. §§ 957, 1461, 1717(a) and 2387 but relying primarily on the provision in § 1461 which provides for the nonmailability of matter tending to incite arson, murder or assassination, the Postmaster General on August 29, 1967, ordered the May 1967 issue banned from the mails. This action was taken after government officials, including President Lyndon B. Johnson, and certain private citizens submitted copies of the issue to postal officials for review.

Since the ban on the issue as an item of foreign mail continues, and the issue may not lawfully be mailed into this country, the case is not moot and the propriety of the Postmaster General's determination of non-mailability is before this Court. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1969); Division 1287 of Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees of America v. Missouri, 374 U.S. 74, 83 S. Ct. 1657, 10 L. Ed. 2d 763 (1963); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911).

The issue at the crux of this litigation is whether the Postmaster General may employ different, substantially abbreviated procedures, when dealing with foreign mail than those he must employ with domestic mail where nonmailability is concerned.

When domestic mail of doubtful mailability is brought to the attention of postal authorities, it is forwarded to the office of the General Counsel where the Assistant General Counsel makes an initial, tentative determination as to whether the matter transgresses a mailability law. If the Assistant General Counsel decides that the matter is nonmailable, a complaint is filed with the Docket Clerk of the Post Office Department. Once a complaint is filed, the Rules of Practice in Proceedings Relative to Mailability found in 39 C.F.R. § 953 (1969) and the provisions of the Administrative Procedure Act
*fn4"
apply. Door v. Donaldson, 90 U.S. App. D.C. 188, 195 F.2d 764 (1952). See Cutler, The Post Office Department and the Administrative Procedure Act, 47 Nw. U.L. Rev. 72 (1952); cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616 (1950).

The procedure established by 39 C.F.R. § 953 involves the forwarding of the complaint to the Docket Clerk of the Post Office Department who then serves the mailer with a copy of the complaint and sets the matter for hearing. A hearing examiner presides at the hearing, and the mailer has the right to introduce evidence and to be represented by counsel at all stages. At the conclusion of the hearing, each party may submit proposed findings of fact and conclusions of law. Following this submission, the hearing examiner enters an initial decision. Either party may appeal the decision to the Judicial Officer of the Post Office Department. If the Judicial Officer sustains the determination of nonmailability, the mailer may appeal for relief to an appropriate federal court. The Post Office Department may not, however, seek review of an unfavorable decision. If the Judicial Officer determines that the matter is non-mailable, it is detained by Post Office officials for a period of fifteen (15) days. During this period, the mailer may apply to withdraw the mail.

When foreign mail of questionable mailability is brought to the attention of postal officials, a different procedure is followed. The mailability of foreign mail thought to violate the statutes at issue in this case is determined exclusively within the General Counsel's Office of the Post Office Department. The procedure which is followed consists of a memorandum opinion of mailability from the Assistant General Counsel of the Mailability Division to the General Counsel. The opinion cites the statutory and decisional law which the Assistant General Counsel feels controls the case. If that memorandum declares an item nonmailable, then postal officials may seize any copies of that item directed to domestic recipients from abroad.

Neither the senders nor the recipients participate in the process leading to the determination of mailability. Neither is informed that the Government suspects that the contents of the mail might violate certain penal statutes; neither is afforded an opportunity to be heard on the question of mailability. The Department's procedures include no regular provisions for administrative or judicial review of its decisions as they pertain to foreign mail.
*fn5"

The May 1967 issue has not been proceeded against as an item of domestic mail. No other issue of The Crusader has been declared nonmailable either as foreign or domestic mail.

The Postmaster General contends that the abbreviated procedure which he applied to the May 1967 Crusader is justified because a foreign sender has no rights under international law to compel delivery of his mail in the United States. According to the Postmaster General's theory, any rights of a foreign sender must flow from either an international agreement or from United States laws or regulations.

He contends that the carriage of foreign mail is governed by agreement among the contracting parties; and that the carriage of the May 1967 Crusader is regulated by the provisions of the Universal Postal Union Convention.
*fn6"

Article 28, Section 1(d), of the Convention states that among the articles which may be prohibited in international mail are "articles whose import or circulation is prohibited in the country of destination." Section 2 of Article 28 provides that "[articles] containing the items mentioned in § 1 which have been erroneously accepted for mailing are handled in accordance with the legislation of the country of Administration which detects their presence." The Postmaster General notes that the convention contains no provision for a mailability hearing for any class of mail. And, in addition, he notes that hearings are not required by the Administrative Procedure Act or by any domestic statute governing the transit of foreign mail.

Finally, he contends that no useful purpose would be served by requiring a hearing at this stage in the proceedings because the May 1967 Crusader has already been conveyed in the mails and the mailer need not respond to any administrative citations.

For the reasons which subsequently appear, we hold that the Fifth Amendment's due process clause requires that the same standards which the Postmaster General applies to domestic mail be applied to foreign mail between American citizens and that because of the Postmaster General's failure to apply those standards, his determination of the nonmailability of the May 1967 Crusader was improper. The determination as to mailability, in the first instance, is for the Postmaster General. In making that determination, however, he must employ procedures which are consistent with this Court's holding and until a proper determination of non-mailability is made, the May 1967 Crusader may be conveyed in the mails.

Any assumption of authority by the Postmaster General to intercept or to impound the mail which is not grounded on clear statutory authority is suspect. Justice Douglas stated that

The Postmaster General's supervisory powers over the mails flow from the power of Congress to determine what can be carried through the mails and what can be excluded. But the powers which Congress has over the mails, like those which the Postmaster General assumes, are, of course, subject to the limitations which the Constitution imposes. Burton v. United States, 202 U.S. 344, 371, 26 S. Ct. 688, 50 L. Ed. 1057 (1906).
*fn7"
In Ex parte Jackson, 96 U.S. 727, 732, 24 L. Ed. 877 (1877) the Court stated that

The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people of far greater importance than the transportation of the mail.

No express authority exists for the power which the Postmaster General has assumed to summarily impound foreign mail. None of the statutes which, according to the Postmaster General, determine the nonmailability of The Crusader authorizes the summary treatment of foreign mail. No provision in the Code of Federal Regulations authorizes such treatment and the Postmaster has cited no administrative or judicial decision sanctioning such treatment.

Congressional hearings concerning legislative proposals to specifically grant to the Postmaster General the power to summarily impound mail indicate that Congress felt that he had no power to summarily impound any mail, foreign or domestic. Deputy Attorney General (now Justice) Byron R. White testified during the course of hearings before the Senate Post Office Committee on legislation which became Section 305 of the Postal Service and Federal Employees Salary Act of 1962. The bill authorized the Postmaster General to detain and deliver only upon the addressee's request unsealed foreign mailings of "Communist political propaganda." Deputy Attorney General White expressed serious doubts as to the constitutionality of a grant of such power to the Postmaster General, particularly in the absence of notice and a hearing. Hearings on H.R. 7927 Before the Committee on Post Office and Civil Service, 87th Cong., 2d Sess. 828, 831 (Postal Rate Revision of 1962).
*fn8"
During hearings on the same bill, Senator Clark stated that: "Any proposal which sets up a universal screening system for foreign mail, regardless of its exceptions, raises serious constitutional questions." U.S. Code Cong. and Ad. News, 87th Cong., 2d Sess. at p. 3076 (1962). Legislation introduced in Congress which would allow the Postmaster General to summarily impound mail shows no awareness that such power existed. See H.R. Rep. No. 850, 83d Cong., 1st Sess. (1953); H.R. Rep. No. 1874, 82d Cong., 2d Sess. (1952); H.R. Rep. No. 2510, 82d Cong., 2d Sess. (1952).

But even if the Postmaster General's position that the terms of the Universal Postal Union govern the transit of the Crusader were accepted, it does not follow that Article 28, Section 1(d), authorizes the imposition of sanctions in a summary fashion.

A Postal Convention is neither a law nor a treaty since it has neither been passed by Congress nor ratified by the Senate. Four Packages of Cut Diamonds v. United States, 256 F. 305, 306 (2d Cir. 1919). A Convention has only the effect of an administrative regulation issued by the Postmaster General under authority of law. Standard Fruit and Steamship Co. v. United States, 103 Ct. Cl. 659, 682 (1946).

Article 28, Section 1(d), contains no standards of its own; it merely points to the domestic laws of member nations for standards of mailability. Since the Supreme Court has emphasized that the Postmaster General is not free to employ whatever procedures he chooses in dealing with prohibited matter, the interpretation of Article 28, Section 1(d), which would be most consistent with the Court's constitutional mandate would be that it directs him to domestic substantive and procedural law for standards of mailability. In Reid v. Covert, 354 U.S. 1, 16, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957), the Court stated that "* * * no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." 354 U.S. at 16, 77 S. Ct. at 1230. Specifically with respect to 18 U.S.C. § 1461, the Supreme Court stated that that section does not authorize "* * * the Postmaster General to employ any process of his own to close the mails to matter which in his view falls within the ban of that section." Manual Enterprises v. Day, 370 U.S. 478, 519, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962). See also Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965).
*fn10"

The Postmaster General takes the position that the May 1967 Crusader can be impounded without a hearing because it is foreign mail. He takes that position in spite of the fact that Williams and the recipients of the issue of the newsletter are American citizens. The predicate of that position is that the place of mailing determines the extent of the constitutional protection to which the mail is entitled. Since the Crusader was mailed from abroad, it is for the Post Office purposes considered "foreign mail." It carries that distinction even though it was mailed by an American citizen, and directed to American citizens. The distinction persists after the mail has been imported and while it is physically located in this country, handled and carried by employees of the United States Postal Service, and brought to the attention of United States Postal officials.

The Postmaster General's distinction between foreign and domestic mail rests only on the fact that The Crusader was deposited for mailing outside of the United States and for part of its transit was moved by a foreign carrier. But that distinction, according to the Postmaster General, justifies the diminished constitutional protection to which he contends The Crusader is entitled.

We think that his failure to respect basic procedural rights cannot rest on such a distinction.
*fn11"

The constitutional protection to which mail between American citizens is entitled is not dependent on whether the item was mailed in this country or abroad. When the Postmaster General detains or impounds mail, of comparatively minor importance is the effect of that action on the piece of mail itself. What is of considerably greater importance is the effect of his actions on the constitutionally guaranteed free access to the mails by American citizens. That effect is the same regardless of whether the citizen finds himself here or abroad. Consequently, when the Postmaster General takes actions which might impair that access, those actions must comply with the Fifth Amendment's Due Process requirements. Pike v. Walker, 73 App. D.C. 289, 121 F.2d 37 (1941), Walker v. Popenoe, 80 U.S. App. D.C. 129, 149 F.2d 511 (1945).

An American citizen does not forfeit his rights to freely use the mails or to be insulated from arbitrary or unfair actions by his Government simply because he finds himself outside of the country. Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957).

Since the recipients have a constitutional right to receive mail, the impounding of the Crusader imposes upon them a sanction as surely as it does upon Williams. As with Williams, that sanction may not be imposed if the Government fails to respect the basic procedural rights to which those recipients are similarly entitled.

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